Licence Appeal Tribunal File Number:17785 /MVIA

In the matter of an appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) from an impoundment of a motor vehicle under section 55.1 of the Act for driving while in contravention of a condition under s. 55.1(1)2 of the Act

Between:

Dmitriy Smetanin

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Emily Morton

APPEARANCES:

For the Appellant:

Katerina Savenko, Representative

For the Respondent:

Ian Sookram, Representative

HEARD: By Teleconference Friday, October 10, 2025

OVERVIEW

1Dmitriy Smetanin, (the “appellant”), appeals the impoundment of their motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on Friday, August 8, 2025. At the time of the impoundment, Ivanna Andrusyak (the “driver”) was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that that they exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was driving the vehicle with a suspended licence, and that the impoundment will cause exceptional hardship.

3The appellant filed the Notice of Appeal to the Tribunal on October 1, 2025, 54 days after the impoundment and more than a month after the expiration of the appeal period. The appellant brought a motion seeking an extension of time to file the Notice of Appeal.

ISSUES

4The issue in dispute is:

i. whether the Tribunal should allow the appellant’s motion to extend the time period to file the Notice of Appeal.

RESULT

5For the reasons set out below the motion is denied. I find that the appellant has not established reasonable grounds to support an extension of time. It follows that this appeal is also dismissed.

MOtion to extend time

6Pursuant to s. 9 of Ontario Regulation 631/98 under the Act, an appeal under s. 50.2 of the Act of an impoundment under section 55.1 of the Act must be filed within 15 days after the day the vehicle was detained together with the fee established by the Tribunal.

7The Tribunal has jurisdiction to extend the time for filing an appeal pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G if it is satisfied that there are reasonable grounds for granting that relief.

8In Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”), the Divisional Court ruled that, on a motion to extend the time to appeal, the overriding consideration is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:

a) The existence of a bona fide intention to appeal;

b) The length of the delay;

c) Prejudice to the other party; and

d) The merits of the appeal.

9All four factors must be applied to the specific facts of each case, with no one factor taking priority over the others, in order to determine whether the justice of the case requires that an extension of time be granted. The onus is on the appellant to establish that the justice of the case requires that the extension be granted.

10I find that the extension should not be granted as, balancing the factors identified in Manuel, the appellant has not established that the justice of the case requires the extension.

Bona fide intention to appeal

11The appellant’s representative submitted that the appellant attempted to file the Notice of Appeal on August 11, 2025, three days after the impoundment. However, the evidence before me is that the Tribunal did not receive a Notice of Appeal until October 1, 2025. The representative testified on the motion that if the appellant had overlooked procedural requirements for properly filing the Notice of Appeal this would have been due to the stress he has been under dealing with a bankruptcy proceeding in court. The representative also testified that it was both her and the appellant’s understanding the Tribunal is along the lines of a “head office” without formal procedures. She testified that she only now understands the Tribunal is an adjudicative body with rules and processes, and that the deadline to file the Notice is set out in the relevant legislation.

12The difficulty with this submission is that the Tribunal decided an appeal in 2019 from the appellant’s business, represented by the same representative, from a prior motor vehicle impoundment: Dimcon Inc. v. Registrar of Motor Vehicles, 2019 ONLAT HTV MVIA 12403, 2019 CanLII 119722 (“Dimcon”) This appeal proceeded to a full hearing on the merits and the Tribunal confirmed the impoundment. Therefore, I reject the evidence that he was unaware of Tribunal processes.

13Further, I do not accept the evidence the appellant was under stress and could not take timely steps to properly file his appeal. The representative testified she has been assisting the appellant with this appeal throughout, and did not provide an explanation as to why she did not take steps to file the Notice within the appeal period. The appellant’s own personal stress does not provide an explanation for the delay.

Length of delay

14The appellant’s Notice was received over a month after the limitation period elapsed and 54 days after the impoundment. I find this is a significant period of delay to appeal from an impoundment of 45 days.

Prejudice to the parties

15The respondent did not make any specific submissions on prejudice. I observe that if an extension of time is granted, the Registrar would be prejudiced as it benefits from a prompt hearing. This is because if an appellant is successful, the Registrar covers the cost of the impoundment. Thus, if a vehicle is going to be released, a prompt appeal reduces the potential cost of the impoundment to the Registrar. The Notice was filed only days before the impoundment period elapsed in this case. I find this factor weighs against granting an extension of time.

Merits of the appeal

16With respect to the merits of the appeal, it is not the Tribunal’s function at this point to determine the strength of the appellant’s appeal. At this point the appellant must show only that its appeal has some merit.

17The appellant is appealing on the grounds of due diligence and exceptional hardship. I heard evidence in the context of the motion and have determined that, even applying the low threshold of whether there is some merit to the appeal, the grounds of appeal asserted lack a factual basis. I keep in mind that the merits aspect of the Manuel test is only one of four considerations I must weigh to determine whether the appellant has established the justice of the case warrants an extension of time to appeal.

18First, I am not satisfied there is any merit to the argument the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.

19In considering what actions might amount to due diligence, the Supreme Court of Canada, in R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 (Sault Ste. Marie”), describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances.

20Although due diligence does not require perfection, it does require that the appellant must establish that they took reasonable actions to determine that the driver was properly licensed rather than simply assuming that to be true. In general, the driver’s own representation that they are properly licensed is not sufficient to establish that due diligence was taken.

21The appellant’s representative testified that the driver is the appellant’s ex-partner and there are “trust issues” between them. Therefore, the appellant asked the driver to present him with her physical driver’s licence before she drove the vehicle on August 8, 2025. The representative did not know whether the appellant checked publicly available information to ascertain whether or not the licence was under suspension.

22However, there is evidence appellant’s vehicle has been impounded while the same driver was operating it on two other occasions. The first impoundment resulted in the Dimcon decision, cited above. The second impoundment (Occurrence No. 1325519) occurred on July 15, 2021. The same driver was operating the vehicle belonging to the appellant’s corporation on both occasions. The appellant’s representative did not challenge this evidence of the prior impoundments involving the same driver. Applying the test in Sault Ste. Marie, even on the low threshold of inquiry into whether there is some merit to the due diligence ground of appeal, I find this is not an arguable ground of appeal. It is “up to the Appellant, on a motion for an extension of time, to demonstrate some merit to the case”: Manuel at para. 37. I am not persuaded, based on a decidedly lower threshold of “some merit,” that the appellant could be successful on this ground of appeal.

23Further, there is no merit to the ground that the impoundment will cause exceptional hardship as that term is defined under O. Reg. 631/98 under the Act (the “Regulation”).

24The Regulation sets out the criteria that the Tribunal is required to consider when determining whether the appellant has established that the impoundment will cause exceptional hardship under the Act. According to the Regulation, the Tribunal must first determine whether no alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

[T]he owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

25If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal on the basis of exceptional hardship will fail and the Tribunal need not consider the remaining factors set out in the Regulation related to exceptional hardship.

26I find ground of appeal is not arguable as there is simply no basis to find there is no alternative to the impounded vehicle. The evidence on the motion was that during the 45-day impoundment, the appellant resorted to several options to transport himself and his dependents other than the impounded vehicle. The evidence is that the appellant used his own work truck, and that his children’s grandmother transported them to activities and school by using a ride hailing service (Uber).

27For the reasons set out above, balancing the factors in Manuel, I find the justice of the case does not weigh in favour of granting an extension of time to file the appeal.

Conclusions

28I find that:

i. The appellant’s motion to extend the appellant’s motion to extend the time to file the appeal must be dismissed.

ORDER

29The appellant’s motion to extend the time for appealing the decision is dismissed. The appeal is also dismissed.